UNIFORM CIVIL CODE- Is the time still not ripe?

Art 44 lays down a very significant directive principle of state policy- “State shall endeavour to secure for its citizens a uniform civil code throughout the territory of India”. However, although directive principles are guiding stars of our constitution, they are not enforceable in court.

Citizens of India are governed by a variety of personal laws in matters of marriage, divorce, succession etc. Now, the question that arises is ‘Why can’t Indians stand on an equal footing in civil matters like marriage, divorce etc even after 68 years of independence? It is absolutely absurd to find that polygamy (the practice of a man to have more than one wife at a time) is legal amongst Muslims but an offence amongst other religious communities.

Uniform civil code is the only way to ensure that everyone has progressive standards of law to abide by equality in standards of justice. It is necessary to have a common code of law wherein all the traditions are harmonised in consonance with the modern times and applied uniformly to each and every Indian.

Judiciary has time and again given a clear indication to the legislature that uniform civil code is the need of the hour. There are several case laws to consolidate and support this argument.

In Jordan Diengheh v S.S. Chopra case the issue of different divorce laws under different religions was addressed and analysed. A Christian lady has married a Sikh man under Christian Marriage Act 1872. A few years later she had filed a petition for declaration of nullity of marriage and judicial separation under Indian Divorce Act.

However, a single bench of HC rejected this prayer of nullity of marriage and granted judicial separation. The division bench affirmed this decision on appeal. On special leave to appeal SC analysed that divorce laws under all the personal laws are far from uniform. The differences among the couple were irreconcilable but due to lack of required provisions for grant of divorce in Indian Divorce Act, the couple had no choice but to continue the meaningless marriage. The court once again observed this as a case that focused on the compulsive need of UCC. There was a need to consider mutual consent as a ground of divorce in all divorce acts in order to provide for a way out to such unhappy couples. Mutual consent was inserted as a ground of divorce in Indian Divorce Act in 2001.

Whenever UCC is discussed the case that remains is the Shah Bano case. The Supreme Court had and very rightly given the decision that Shah Bano was entitled to maintenance under Section 125 of CrPc. But subject to the growing protests from the Muslim community this decision had to be struck down.

However, the depressing part is that the debate on UCC has got trapped in politics. Instead of reaching out to a consensus, it has become a blame game played by different political parties.

As observed by Supreme court in Sarla Mudgal’s case, the implementation of Uniform Civil Code is imperative for the protection of the oppressed and the helpless women, who are suffering only and only in the name of religion. There is no logical connection between religion and personal law in a civilised society.  Years after the Shah Bano case, the case that came to the picture was the Shayara Banu case. In 2015, she was divorced by her husband who gave her triple talaq for no such justifiable reasons. She was tortured relentlessly and in her entire married life tolerated this torture just due to the fear of being “triple talaqued” by her husband. But at last her fears came true.

In 1954, when the then Prime Minister, Jawaharlal  Nehru was asked as to why UCC hasn’t been implemented yet, he replied that the time is not ripe to make it come to force. It is rather interesting to note that today even after 68 years of independence the time does not seem to be ripe. How long are we going to wait for such numerous Shah Banos or Shayra Banus or Sarla Mudgars to suffer????

Therefore, the time has arrived that we adopt one nation one statute policy. If the same law of contract or torts applies to a Hindu or Muslim, why not the same law of marriage?

Hence top here with this I stop my pen just with the hope that we all rise above politics and lead India towards a better nation.



ABOUT THE AUTHOR

Krupa Thakkar

KRUPA THAKKAR

Krupa Thakkar is currently pursuing BLS LLB from Government Law College, Mumbai. She is presently in her second year. Always eager to learn new things, she keeps herself updated with happenings around the world. Though not an extrovert, she makes sure that she performs the best whenever she is allotted any task.

Centre To Abolish Triple Talaq, Polygamy

This article has been written by Plash Mittal. Plash is a student of BCom LLB at University Institute of Legal Studies, Panjab University, Chandigarh.

Validity of practices like triple talaq and polygamy needs to be seen in the light of gender justice. They go against the principle of gender equality and are unfair, unreasonable and discriminatory. Taking a firm stand against the controversial Muslim custom of triple talaq and polygamy officially for the first time, the Centre has told the Supreme Court through an affidavit that the practices need to be abolished.

A large number of Muslim countries like Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt, Sri Lanka, and Iran, where Islam is the state religion have undertaken reforms in this area and have regulated divorce law and polygamy. Why should India, a secular country, continue to deny Muslim women their rights under the Constitution? The fact that Muslim countries have undergone extensive reform and that the practices are not integral to the practice of Islam or essential religious practices. Under Muslim personal law based on the Sharia, a Muslim man can divorce his wife by pronouncing talaq thrice either consecutively or at three different stages in the presence of an elder male (Talaak-e-Bidat). Muslim men are also allowed to have four wives (polygamy).

The affidavit, drafted by advocate Madhavi Divan, recognized the essential role played by women in a country’s overall development and said it would not only be unconstitutional but a severe impediment in a nation’s development if women were denied equal rights in every sphere of life, including matrimony. It says:

 

  1. Issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality.
  2. The fact that Muslim countries where Islam is the state religion have undergone extensive reform goes to establish that the practices in question cannot be regarded as integral to the practice of Islam or essential religious practices.
  3. Secularism being a hallmark of Indian democracy, no part of its citizenry ought to be denied access to fundamental rights; much less can any section of a secular society be worse off than its counterparts in theocratic countries, many of which have undergone reform.
  4. Gender equality and dignity of woman are non-negotiable, overarching constitutional values and can brook no compromise. These rights are necessary in letter and in spirit to realize aspirations.

These rights are necessary not only to realize the aspirations of every woman but also for the larger well-being of society and the progress of the nation, one-half of which is made up by women. Any practice (triple talaq and polygamy) which denudes the status of a citizen of India merely by virtue of the religion, she happens to profess is an impediment to that larger goal.

The Centre said triple talaq, nikah halala and polygamy could not be regarded as essential or integral part of religion and would not be included under the ambit of Article 25 of the Constitution which guarantees a citizen the right to practice and profess a religion of his/her choice. It picked on the affidavit filed by All India Muslim Personal Law Board, which had defended the practice as part of religion-sanctioned custom even while terming them as undesirable.

Gender equality and dignity of women are non-negotiable overarching constitutional values. One section of women in society could never be worse off than the other. The Modi government took a veiled dig at its predecessors for not moving to reform Muslim personal law. The same has not happened for over six-and-a half decades and women who comprise a very sizeable proportion of the said community remain extremely vulnerable, both socially as well as financially.  There is no legal bar against abolishing polygamy and triple talaq, given the march of time and the need for social reform. The Centre feared that such a practice would impact her confidence and dignity.

The All India Muslim Personal Law Board (AIMPLB) strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq, saying that as men, they were better at controlling their emotions, unlike women. The Board has also said that polygamy prevents illicit sex and protects women.

It said “any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of men folk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution”. The government said Muslim women, merely by virtue of their religious identity and the religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths.

Behind the preservation of personal was the preservation of plurality and diversity among the people of India. The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to as citizens.

Bibliography:

How to pin down the breacher!

“Honesty”, “Fair play” and “Confidence” are not just the words to be quoted but mean a lot while contracting. When you enter or make a contract, you agree on the mutual terms also you mutually place trust and confidence of yours in the other party and the same is expected from the opposite party. What if the opposite party has downplayed you? What if your contract was reduced to a mere piece of waste paper? What if the other party hasn’t turned up on the contract?

If that is the case then you can always catch and pin down the breacher. Here are the how you can do it :-

SUIT FOR DAMAGES

The word ‘damages’ means monetary compensation for the loss suffered. The aggrieved party may seek compensation from the party who breaches the contract.

When the aggrieved party claims damages as a consequence of breach, the court takes into account:

  • The provisions of law in this regard and
  • the circumstances attached to the contract.

The amount of damages would depend upon the type of loss caused to the aggrieved party by the breach. The court would first identify the losses caused and then assess their monetary value.

Your case and the circumstances will decide the amount of compensation which may fall into these 3 categories:

  1. General or ordinary damages – Damages arising naturally and directly out of the breach in the usual course of the things.
  2. Special damages – Compensation for the special losses caused to the aggrieved party by the special circumstances attached to the contract.
  3. Exemplary damages. – Damages for the mental or emotional suffering also caused by the breach.

TIP:  Plead in the manner in which you suffered the loss.

LIQUDATED DAMAGES AND PENALTY

The advantage of contracting is that you get all the agreed terms in writing + with a legal binding. One of such advantage is that you would have, in your contract, mentioned the section “In case of Breach”, the amount for realization. That very section will be come into play. If a sum is named in the contract as the amount to be paid in case of such breach, the party complaining of breach is entitled, to receive from the party who has broken the contract a reasonable compensation not exceeding the amount so named. This will be a penalty for the breacher.

SUIT FOR SPECIFIC PERFORMANCE

You can make court to enforce the contractual obligations and liabilities of the breaching party because in certain cases of breach of a contract, damages may not be an adequate remedy.

Cases where specific performance may be ordered:

  1. Where there exists no standard for ascertaining the actual damage caused to the aggrieved party by the non-performance.
  2. Where monetary compensation will not be adequate relief.
  3. Where the act to be done is in the performance of trust.
  4. In general the court will only grant specific performance where it would be just and equitable to do so.

SUIT FOR INJUNCTION

An injunction is an order of the court requiring a person to perform a negative obligation. But for performance of the positive terms of the contract, the aggrieved party may seek other remedies.

You can move in the court and plead for grant of Injunction as a remedy of the breach.

SUIT FOR RESCISSION

If the opposite party hasn’t performed his/her part of the contract then you need not worry, you may also escape from it!

The breach of contract no doubt discharges the contract, but the aggrieved party may sometimes need to approach the court to grant him a formal rescission, i.e., cancellation, of the contract. This will enable the aggrieved party to be free from his own obligations under the contract.

PUNITIVE DAMAGES

Punitive damages are damages intended to reform or deter the defendant. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will in fact receive all or some portion of the punitive damage award the court may impose them to prevent under-compensation of plaintiffs, to allow redress of undetectable torts and taking some strain away from the criminal justice system.

And lastly,

 ‘Open your eyes and your ears when contracting, because the agreed upon circumstances means a lot’

And

Don’t get disheartened when caught in the trap of breach rather pin him down by your rights!

 

AUTHOR

Vrinda Chauhan